Debatably Political : August 2024

Abstract (TL:DR Version)
The Constitution of the United States established a remarkably stable democratic republic. The nation has persisted under that constitution for 235 years, despite a civil war, world wars, wars of territorial acquisition, corrupt presidents, and most recently, an attempt by a sitting president to violently overturn the lawful result of an election. The former president was supported by 147 Congressmen, 6 Senators, a number of state officials and a significant percentage of the population in committing that crime. But nevertheless, the United States persists under the Constitution.

The government designed by the Constitution is an amalgam of democratic and republican government principles. The government is a representational republic built from constituent states; but elections in those states are required to be democratic. The dynamic balance between those influences has generally allowed the nation to change according to popular opinion, while protecting the rights of geographic minority interests (with the notable exception of the civil war and slavery). Our two major political parties, by their very names, prioritize different sides of the democratic and republican components of our government.

The Constitution allocated disproportionate power to small states from the very beginning. In the 1790 census, Virginia, the largest state, had a total population that was nearly 13 times larger than Delaware, the smallest state. (Throughout this post, I will refer to large states and small states in terms of population, not area.) At the time, only white males over the age of 21 living in member states had the right to vote for national offices. Women, enslaved people, children and citizens of U.S. Territories did not vote and were not represented in government. In terms of free white men, Virginia had about ten times the population of Delaware.

Over time, the demographic development of the nation produced a greater imbalance in the power of voters in small and large states. The population disparity between large and small states has grown. Voters in small states now have a massively disproportionate power over the federal government, relative to voters in large states. Today, a voter in Wyoming has 68 times the power of a California voter, and nearly 4 times the power of a California voter in the Electoral College. According to today’s distribution of voters, a partisan population of about 28% of all voters can elect the president, and a partisan population of about 17% can control the U.S. Senate. Together, partisan control of the Senate and the Presidency also gives small states control of the Federal courts, including both lower courts and the Supreme Court. The power imbalance under the constitution potentially gives a distinct minority of the population control over two and one-half of the three branches of the Federal government.

The structural foundation of that power imbalance means that we have entered an era of permanent minority rule. Small states will not be willing to accept the changes that will undermine their disproportionate political power, and will block attempts to equalize power. I see persistent minority rule as perhaps the biggest threat to American constitutional government. There will come a point when minority rule is intolerable to the majority of Americans, but cannot be changed through constitutional processes. I don’t know how that will be resolved.
End of abstract.
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The Structure of Disproportionate Political Power
Disproportionate political power is structurally embedded in the constitution. Disproportionate power has existed since the country’s founding, but has been growing as the country grew from 13 to 50 states and from 4 million to 338 million people.

Disproportionate power lies principally in the Senate, but also exists in the Electoral College and in the House of Representatives. Each state, regardless of population, has two Senators. Seats in the House of Representatives are re-apportioned once a decade according to population, with a minimum of 1 seat per state. Votes in the electoral college are based on the sum of Senate and House seats by state, so that Wyoming, with a population of 584,000 (7/1/2023), has 3 votes in the electoral college, while California with a population of 38,9645,000 (7/1/2023) has 54 votes in the electoral college. Considering the voting population, a voter in Wyoming has 68 times the political power of a voter in California in the U.S. Senate.   A Wyoming voter also has 3.8 times the power of a California voter in the Electoral College, and 1.3 times the power of a California voter in the House of Representatives.

Political Power of Small States in 1790
Disproportionate power existed at the time the Constitution was written. The 1790 census gives us a good picture of the nation at the time of the ratification of the Constitution. To consider political power, I’m looking at the constitutional representation and populations of the original 13 states.   Voting rights in 1790 were set by the states, but the general standard was that only free males over the age of 21 had the right to vote. An 81% majority of the population, including women, children, enslaved people and residents of US territories, held no political power. Over time, voting rights were earned by citizen of territories which became states, formerly enslaved people, and women.

Consider what portion of the population was needed to control the U.S. Senate if all small states vote for the same party. In 1790, the six smallest states, plus one senator from the next largest state, could control the U.S. Senate. The voting population of the 6 ½ small states was 185,800, or 24.9% of the voting population. Only 51% of the voters were needed to elect a senator. So, in theory, 94,800 voters, representing 11.6 % of the voting population, or 2.4% of the total population, could control the U.S. Senate.

To elect a president in 1790 required a larger percentage of the population. There were 91 votes in the electoral college. To achieve a winning majority with small states, 9 states out of 13 were necessary, with a voting population of 339,200, or 45.5% of the voting population. If 51% of the voters in the smallest states voted together, in theory 23.2% of the voters (4.4% of the total population) could choose the president.

The Urban-Rural Divide
The urban-rural divide is one of the most important socio-political divisions in American politics, on a par with religion, race, age or education (which are correlated variables). Recent articles note that the urban-rural divide began to develop around 1960. The divide primary applies to white voters and continues to grow. For this discussion, the most important fact is that the urban-rural divide exists. States with small populations are generally rural; states with large populations are boosted by high-density urban populations. Thus, the disproportionate political power established by the U.S. Constitution becomes a structural partisan advantage.

The urban-rural divide is a global phenomenon, identified in countries spanning Europe and Asia, and probably existing in South America and Africa as well. In Europe, urban-rural polarization has coincided with the rise of far-right populism and the decline of centrist parties.

In the United States, the urban-rural divide persists even within small, rural states. Cities and towns remain partisan Democratic outliers within predominantly Republican states. Overall, rural counties are aging and shrinking as a percentage of the US population. Forecasters have suggested that increasing urbanization might reduce the partisan lean of small states, but that depends on uncertain future demographic trends.

Disproportionate Power of Red States Today
To see the actual impact of the disproportionate power given to small states, we need to look at the actual voting population and partisan populations. Only forty votes are needed to control the filibuster, under the rules of the U.S. Senate. Fifty-one votes are needed to win a vote in the Senate, and 270 votes are needed in the electoral college to elect the president. The following table shows the voting population of red states, in rank order by population, needed to achieve control of the filibuster, control of the Senate, and elect the president.

Given our current distribution of population and partisan lean, a voting population of only 17.1 percent of total voters, and a partisan population of only 10.5% of total voters, can shut down any legislative proposal by controlling the filibuster. A voting population of only 30% of all voters, and a partisan cohort of only 17.8% of all voters can control the majority in the U.S. Senate. And a partisan population of only 28.1% of the total voting population can (and sometimes does) elect the president with a minority of the popular vote.

In 2000, George W. Bush won the presidency with 47.9% of the popular vote, and in 2016, Donald Trump won the presidency with 46% of the popular vote. Not surprisingly, both of these men were Republicans, and were elected largely on the strength of conservative voters in small states. Disproportionate electoral power can also amplify the impact of spoiler candidates, who have influenced the winning candidate for both Democrats and Republicans in the past several decades.

According to The Daily Kos, Democrats have won the popular vote for Senate elections in 14 of the past 15 cycles (aggregating the vote over the three cycles to replace the full Senate), but Republicans have controlled the Senate in 9 out of those 15 cycles. That disparity in representation has increased in recent years. Today, Republicans hold 49 seats, but these seats represent only 42% of the national population.

Federal Judiciary
The combination of disproportionate power in the Senate and Presidency has an insidious impact on governmental power under the constitution. The U.S. Senate is required to confirm presidential nominations for Article III judges: Federal District Judges, Federal Court of Appeals Judges, and Supreme Court Justices, and for a few specialty courts. In all, there are 890 of these positions. There is natural turnover in these positions, and occasional elevations that require additional confirmations.

Federal judges hold the ultimate power under the U.S. Constitution. In 1803, Chief Justice John Marshall asserted in Marbury vs. Madison that the Supreme Court had the authority to interpret laws passed by Congress. There is no check on this power other than impeachment by Congress, and in a practical matter, a Senate controlled by small states would not convict judges simply for interpreting laws in a way favored by those states. The Supreme Court can rule that black is white, or that a President has immunity from any criminal proceeding (e.g., Trump vs. The United States, 2024), and there is no recourse to that decision under the constitution, so long as the Justices’ behavior does not warrant impeachment.

The exercise of disproportionate power by small states was seen clearly in the years 2015 and 2016, when Republicans took control of the Senate during President Obama’s last two year in office. The rate of judicial nomination approvals dropped from 90% to 28%. Republicans refused to hold a vote on 215 nominations and left 105 judicial seats vacant for President Trump to fill after he took office. These included one seat on the Supreme Court. Given that Federal judgeships are lifetime appointments, this partisan abuse of power can shape the nation’s government for a generation. There is no recourse under the Constitution to assert the will of the majority.

Conclusion
Small states are given disproportionate power in the U.S. government by the Constitution. That disproportionate power was a feature of the U.S. government from the beginning, but has grown more dominant in recent years due to differential population growth in large and small states and the increasing urban-rural partisan divide.

Partisan lean does not determine everything about an election, or control of the Presidency or Senate. There are swing states that can vote either way, and there are a number of Senators (e.g. Jon Tester, Kyrsten Sinema and Joe Manchin) who upend simple models of Senate control. But in our increasingly rancorous and partisan political landscape, those Senators are less likely to retain their seats, and Presidents are more likely to be elected from the party dominating politics in small rural states.

The combined disproportionate power of small states in the Electoral College and Senate gives small states disproportionate influence over the Federal Judiciary at every level, including the Supreme Court. As long as the country abides by Constitutional rule, the Supreme Court is the ultimate law of the land. Depending on the integrity of the Justices on the Court, the court can essentially decide every potential partisan conflict regarding rules or policies in favor of their minority supporters.

A minority population in small states can control two and one-half of the three branches of government against the will of the majority. The political divide between urban and rural populations ensures that small rural states will typically vote as a partisan block. I see no way of countering these trends without Constitutional amendments, but these would be impossible to pass without the cooperation of states that would lose power. Three-quarters of the states must ratify a Constitutional amendment, therefore reform will not happen.

At some point, the political decisions driven by the minority in small states will become intolerable to the majority. We are close to that point now. In this election, Republicans are running a candidate who is the most odious person imaginable. Even at that, the result in November is unclear. Through abuse of power in the Senate, Republicans have already grasped a generation-long majority in the Federal judiciary and Supreme Court. Republicans will probably dominate the Senate for the foreseeable future. There’s no reason to think that these trends will change.

In summary, I think that the minority rule by small states, established by the constitution, is the most dangerous threat to the long-term existence of the nation under the constitution. When minority control of the government and courts is sufficiently intolerable, the majority will eventually seek a restructuring of the government outside of the constitution.